The poker news websites went wild. “New Zealand Court Backs Poker” proclaimed gamblingonlinemagazine.com. “In a groundbreaking ruling a New Zealand court has delivered a huge blow to opponents of online poker, and poker in general,” said pokernewsboy.com.

“Though they may be an ocean away, the nation of New Zealand has fired a shot which could reverberate through the poker landscape,” said flopturnriver.com.

What they were all raving about was a ruling District Court Judge David Harvey delivered on June 23 which found that advertisements for Pokerstars.net and the Asia Pacific Poker Tour run on TV3 and C4 were not promoting online gambling.

The Department of Internal Affairs, which brought the case, has said it will appeal the decision.

The details of the case are interesting. Essentially pokerstars.net is a play money gambling site (which is legal) and pokerstars.com is a proper gambling site (which can not be promoted under NZ law). DIA argued that by advertising one, they were advertising both, essentially.

A feature of the case was the difference between the “dot net” and “dot com” Pokerstars websites. The .net site is for practise poker games using “play money”. The .com site has online poker with gambling for real money. A key plank of Internal Affairs’ case was that the use of the generic word “Pokerstars” in both the.net and .com domain names were two ways of saying the same thing. “It is the prosecution case,” says the judgment, “that the advertisements were de facto advertisements for pokerstars.com, using and emphasising the brand name ‘pokerstars’.”

I’m sceptical of that argument.

Judge David Harvey is widely regarded as New Zealand’s most technologically savvy judge. Appointed to the bench in 1988 he serves in the District Court holding warrants for general, jury and Youth Court jurisdictions. A former chair of the Copyright Tribunal, he lectures part-time in law and information technology at the University of Auckland, has been involved in the introduction of information technology for the Judiciary since 1990, and is the author of internet.law.nz – Selected Issues. A former international Mastermind champion (his speciality was J R R Tolkien’s The Lord of the Rings), he writes widely on law and internet topics, is currently completing a PhD and has been active in making submissions on our laws relating to copyright and legislating against spam.

I first met Judge Harvey through the old Internet newsgroups on Usenet. He qualifies as a genuine geek

This time around Judge Harvey appears to have taken an important lesson from his earlier mis-step – that judges must always make the reasons for their decisions abundantly clear. His judgment extends to 47 pages. It’s also New Zealand’s first digital judgment – a 9MB “PDF” digital document, complete with embedded video of the advertisements in question. It sits in the court file, not on paper, but on a CD.

In response to the evidence of prosecution expert witness Professor Sarah Todd, a professor of marketing, Judge Harvey said he had concerns about the basis of her assumption – that there was a high chance those intending to go to the free pokerstars.net site, may in fact, end up on the pokerstars.com by accident. “Internet addresses are unforgiving of errors. A mistake in one letter of a domain name may produce a nil result or may direct a user to a completely different website.”

He then pointed out the sort of mistake suggested involves typing three wrong letters and seemed to overlook the fact the advertising was directed to online poker sites, anticipating an audience with some familiarity in the use of computers and the internet.

The judgment also goes through each of the advertisements – and provides the videos so that people reading the text can see for themselves what was being advertised. The web address shown in each advertisement is always pokerstars.net and often includes the words “this is not a gambling website” or “play for free”. In some of the ads, professional poker players are linked to popular sports – Noah Boeken plays soccer, Daniel Negreanu hockey and Isabelle Mercier boxes. Their commentaries include lines like, “Practise for free at the world’s largest poker site, pokerstars.net and find the pokerstar in you.”

Looks a very reasonable decision to me. Finding TV Works guilty for promoting a legal website on the basis it has a similar name to a website that can not be legally promoted, would set in my opinion an unhealthy precedent.

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This entry was posted on Saturday, July 10th, 2010 at 10:49 am and is filed under New Zealand.
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Bloody DIA. They get a good judgement, but just because it doesn’t go their way and it’s not their money they’re spending but taxpayers’, they appeal. What’s so bad about advertising online gambling anyway? It’s fine if it’s Lotto or the TAB.

You know what shocks me is that cases so frequently turn on some theory that is tested only in the minds of those in the court. In this case, the likelihood of confusion. There could hardly be a means of testing anything that has a weaker relationship between the test and the underlying reality. Yet this is where it counts the most – thousands of dollars or peoples lives and reputations are at stake. In my view, absent direct evidence of widespread confusion, any prosecution case that depends on such theories ought to be thrown out immediately.